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EXHIBIT 1.1
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1,840,000 SHARES
CONCEPTS DIRECT, INC.
COMMON STOCK
JUNE __, 1997
UNDERWRITING AGREEMENT
EVEREN SECURITIES, INC.
&
XXXXX & XXXXXXXXXXXX, INC.
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1,840,000 Shares
Concepts Direct, Inc.
Common Stock
($.10 par value)
UNDERWRITING AGREEMENT
June __, 1997
EVEREN Securities, Inc.
Xxxxx & Xxxxxxxxxxxx, Inc.
As Representatives of
the Several Underwriters
c/o EVEREN Securities, Inc.
00 Xxxx Xxxxxx Xxxxx
Xxxxxxx, Xxxxxxxx 00000-0000
Ladies and Gentlemen:
Concepts Direct, Inc., a Delaware corporation (the "Company"), and the
stockholders of the Company set forth on Schedule I hereto (collectively
referred to as the "Selling Stockholders"), confirm their agreement with each
other and the several underwriters listed in Schedule II hereto (the
"Underwriters"), for whom EVEREN Securities, Inc. and Xxxxx & Xxxxxxxxxxxx,
Inc. (collectively, the "Representatives") have been duly authorized to act as
representatives, as follows:
1. The Shares. Subject to the terms and conditions set forth in this
agreement (the "Agreement"), the Company proposes to issue and sell Four Hundred
Seventy-One Thousand, Four Hundred and Four (471,404) shares of its authorized
but unissued Common Stock, $.10 par value (the "Common Stock"), to the several
Underwriters, and the Selling Stockholders propose
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to sell an aggregate of One Million One Hundred Twenty-Eight Thousand, Five
Hundred Ninety-Six (1,128,596) shares of issued and outstanding Common Stock to
the several Underwriters in the amounts set forth on Schedule II. Such One
Million Six Hundred Thousand (1,600,000) shares of Common Stock proposed to be
sold by the Company and the Selling Stockholders are hereinafter referred to as
the "Firm Shares." The Company also proposes to grant to the Underwriters an
option to purchase up to Two Hundred Forty Thousand (240,000) additional shares
of Common Stock (the "Additional Shares") if requested by the Underwriters as
provided in Section 3 hereof. The Firm Shares and the Additional Shares are
herein collectively called the "Shares."
The Company and each of the Selling Stockholders hereby confirm their
respective agreements with the Underwriters as follows:
2. Registration Statement and Prospectus. The Company has prepared and
duly filed with the Securities and Exchange Commission (the "Commission") in
accordance with the provisions of the Securities Act of 1933, as amended, and
the rules and regulations of the Commission thereunder (collectively, the
"Act"), a registration statement on Form S-1 (File No. 333-26133) including a
prospectus, relating to the Shares. To the extent the registration statement
has been amended, each such amendment has been prepared and duly filed with the
Commission. The registration statement, as amended, at the time when it became
or becomes effective, including all financial schedules and exhibits thereto
and all of the information (if any) deemed to be part of the registration
statement at the time of its effectiveness pursuant to Rule 430A under the Act
("Rule 430A"), is hereinafter referred to as the "Registration Statement"; the
prospectus in the form first provided to the Underwriters by the Company in
connection with the offering and sale of the Shares (whether or not required to
be filed pursuant to Rule 424(b) under the Act ("Rule 424(b)")) is hereinafter
referred to as the "Prospectus," except that if any revised prospectus shall be
provided to the Underwriters by the Company for use in connection with the
offering of the Shares that differs from the Prospectus (whether or not any
such revised prospectus is required to be filed by the Company pursuant to Rule
424(b) under the Act), the term "Prospectus" shall refer to the revised
prospectus from and after the time it is first provided to the Underwriters for
such use. Each preliminary prospectus included in the Registration Statement
prior to the time it became or becomes effective is herein referred to as a
"Preliminary Prospectus."
3. Agreements to Sell and Purchase. On the basis of the representations
and warranties contained in this Agreement, and subject to the terms and
conditions hereof, (i) the Company agrees to issue and sell to the
Underwriters, at a price of $_____ per Share (the "Purchase Price"), Four
Hundred Seventy-One Thousand, Four Hundred and Four (471,404) newly issued Firm
Shares, (ii) each Selling Stockholder agrees to sell to the Underwriters, at
the Purchase Price, the number of Firm Shares set forth next to such Selling
Stockholder's name on Schedule I; and (iii) each Underwriter agrees, severally
and not jointly, to purchase from the Company and the Selling Stockholders, at
the Purchase Price, the aggregate number of Firm Shares set forth opposite the
name of such Underwriter in Schedule II hereto. The number of Firm Shares to
be purchased by each Underwriter from the Company and each Selling Stockholder
shall be as nearly as practicable in the same proportion as the number of Firm
Shares
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being sold by the Company and each Selling Stockholder bears to the total number
of Firm Shares to be sold hereunder.
On the basis of the representations and warranties contained in this
Agreement, and subject to the terms and conditions hereof, (i) the Company
agrees to sell to the Underwriters, at the Purchase Price, up to Two Hundred
Forty Thousand (240,000) Additional Shares; and (ii) the Underwriters shall
have the right to purchase, severally and not jointly, from time to time, up to
an aggregate of Two Hundred Forty Thousand (240,000) Additional Shares at the
Purchase Price. Additional Shares may be purchased as provided in Section 4
hereof solely for the purpose of covering over-allotments made in connection
with the offering of the Firm Shares. If any Additional Shares are to be
purchased, each Underwriter, severally and not jointly, agrees to purchase the
number of Additional Shares (subject to such adjustments to eliminate
fractional shares as the Representatives may determine) that bears the same
proportion to the total number of Additional Shares to be purchased as the
number of Firm Shares set forth opposite the name of such Underwriter in
Schedule II bears to the total number of Firm Shares.
For a period of 12 months from the date this Agreement becomes effective,
the Company covenants and agrees that it will not, without the prior written
consent of EVEREN Securities, Inc. on behalf of the Underwriters (1) offer,
pledge, sell, contract to sell, sell any option or contract to purchase,
purchase any option or contract to sell, grant any option, right or warrant to
purchase, or otherwise transfer or dispose of, directly or indirectly, any
shares of Common Stock or any securities convertible into or exercisable or
exchangeable for Common Stock, or (2) enter into any swap or other agreement
that transfers, in whole or in part, any of the economic consequences of
ownership of any shares of Common Stock, whether any such transaction described
in clause (1) or (2) above is to be settled by delivery of Common Stock or other
securities, in cash or otherwise; provided, however, that this clause shall not
apply to the transactions expressly contemplated by this Agreement or the
granting of options to purchase shares of Common Stock to the Company's
directors and employees pursuant to the exercise of options under the 1992
Non-Employee Directors Stock Option Plan or the 1992 Employee Stock Option Plan
(collectively, the "Option Plans").
For a period of 12 months from the date this Agreement becomes effective,
the Company covenants and agrees that it will not, without the prior written
consent of EVEREN Securities, Inc. on behalf of the Underwriters, file a
registration statement relating to shares of capital stock (including the
Common Stock) or securities convertible into or exercisable or exchangeable
for, capital stock, or warrants, options or rights to purchase or acquire,
capital stock, with the exception of the filing of Registration Statements on
Form S-8 with respect to the Option Plans.
For a period of 12 months from the date this Agreement becomes effective,
each Selling Stockholder covenants and agrees that such Selling Stockholder
will not, without the prior written consent of EVEREN Securities, Inc. on
behalf of the Underwriters (1) offer, pledge, sell, contract to sell, sell any
option or contract to purchase, purchase any option or contract to sell, grant
any option, right or warrant to purchase, or otherwise transfer or dispose of,
directly or indirectly, any shares of Common Stock or any securities
convertible into or exercisable or exchangeable for Common Stock, or (2) enter
into any swap or other agreement that transfers, in
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whole or in part, any of the economic consequences of ownership of the Common
Stock, whether any such transaction described in clause (1) or (2) above is to
be settled by delivery of Common Stock or other securities, in cash or
otherwise; provided, however, that this clause shall not apply to the
transactions expressly contemplated by this Agreement or to transfers of Common
Stock to partnerships, limited liability companies, trusts or similar entities
organized for the exclusive benefit of family members of Selling Stockholders
for financial and estate planning purposes so long as any transferee that
receives Common Stock as a result of such transfer shall agree upon such
transfer to be bound by the terms of this paragraph and shall be capable of
being so bound.
4. Agreements of the Company as to Delivery and Payment. The Company and
Selling Stockholders agree with each Underwriter that:
(a) Delivery to the Underwriters of and payment for the Firm Shares
shall be made at 10:00 A.M., New York City time, on the third full
business day (such time and date being referred to as the "Closing Date")
following the date of the initial public offering of the Firm Shares as
advised to you by the Company, at such place as you shall designate.
(b) Delivery to the Underwriters of and payment for any Additional
Shares to be purchased by the Underwriters shall be made at such place as
the Representatives shall designate, at 10:00 A.M., New York City time,
on such date or dates (individually, an "Option Closing Date" and
collectively, the "Option Closing Dates"), which may be the same as the
Closing Date but shall in no event be earlier than the Closing Date, as
shall be specified in a written notice from the Representatives to the
Company of the Underwriters' determination to purchase a number,
specified in said notice, of Additional Shares. Any such notice may be
given at any time prior to the thirty-first (31st) day after the date of
this Agreement.
(c) Certificates for the Shares shall be registered in such names
and issued in such denominations as you shall request in writing not
later than two business days prior to the Closing Date or the applicable
Option Closing Date, as the case may be, and shall be made available for
inspection not later than 9:30 A.M., New York City time, on the business
day next preceding the Closing Date or the applicable Option Closing
Date, as the case may be, with any transfer taxes payable upon initial
issuance or the transfer thereof duly paid by the Company for the
respective accounts of the Underwriters against payment of the Purchase
Price therefor by certified or official bank check or checks payable in
New York Clearing House or similar next-day funds to the order of the
Company and the Selling Stockholders.
5. Further Agreements of the Company. The Company also agrees with each
Underwriter that:
(a) it will, if the Registration Statement has not heretofore become
effective under the Act, file an amendment to the Registration Statement
or, if necessary pursuant to Rule 430A under the Act, a post-effective
amendment to the Registration Statement, as soon as practicable after the
execution and delivery of this Agreement, and will use its best
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efforts to cause the Registration Statement or such post-effective
amendment to become effective at the earliest possible time; and the
Company will comply fully and in a timely manner with the applicable
provisions of Rule 424(b), Rule 430A and the other rules under the Act;
(b) it will advise you promptly and, if requested by you, confirm
such advice in writing, (i) when the Registration Statement has become
effective, if and when the Prospectus is sent for filing pursuant to Rule
424 under the Act and when any post-effective amendment to the
Registration Statement becomes effective, (ii) of the receipt of any
comments from the Commission that relate to the Registration Statement or
requests by the Commission for amendments to the Registration Statement
or amendments or supplements to the Prospectus or for additional
information, (iii) of the issuance by the Commission of any stop order
suspending the effectiveness of the Registration Statement, or of the
suspension of qualification of the Shares for offering or sale in any
jurisdiction, or the initiation or, to the best knowledge of the Company,
threat of any proceedings for such purpose by the Commission or any state
securities commission or other regulatory authority, and (iv) of the
happening of any event or information becoming known during the period
referred to in paragraph (e) below that makes any statement of a material
fact made in the Registration Statement untrue or that requires the
making of any additions to or changes in the Registration Statement (as
amended or supplemented from time to time) in order to make the
statements therein not misleading or that makes any statement of a
material fact made in the Prospectus (as amended or supplemented from
time to time) untrue or that requires the making of any additions to or
changes in the Prospectus (as amended or supplemented from time to time)
in order to make the statements therein, not misleading; if at any time
the Commission shall issue or institute proceedings (or threaten to
institute any such proceedings) to issue any stop order suspending the
effectiveness of the Registration Statement, or any state securities
commission or other regulatory authority shall issue or institute
proceedings (or threaten to institute proceedings) to issue an order
suspending the qualification or exemption of the Shares under any state
securities or Blue Sky laws, the Company shall use its best efforts to
obtain the withdrawal or lifting of such order at the earliest possible
time;
(c) it will furnish to you without charge three signed copies of the
Registration Statement as first filed with the Commission and of each
amendment to it, including all exhibits filed therewith, and will furnish
to you and each Underwriter designated by you such number of conformed
copies of the Registration Statement as so filed and of each amendment to
it, without exhibits, as you may reasonably request;
(d) it will not file any amendment or supplement to the Registration
Statement, whether before or after the time when it becomes effective, or
make any amendment or supplement to the Prospectus of which you shall not
previously have been advised and provided a copy a reasonable period of
time prior to the filing thereof or to which you or your counsel shall
reasonably object; and it will prepare and file with the Commission,
promptly upon your reasonable request, any amendment to the Registration
Statement or supplement to the Prospectus that may be necessary or
advisable in connection with the
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distribution of the Shares by you in your or your counsel's
opinion, and will use its best efforts to cause the same to become
effective as promptly as possible;
(e) promptly after the Registration Statement becomes effective, and
from time to time thereafter for such period as a prospectus is required
by the Act to be delivered in connection with the sales by an underwriter
or a dealer (in the opinion of your counsel), it will furnish to each
Underwriter and dealer without charge as many copies of the Prospectus
(and any amendment or supplement of the Prospectus) as such Underwriter
or dealer may reasonably request for the purposes contemplated by the
Act; the Company consents to the use of the Prospectus and any amendment
or supplement thereto by any Underwriter or any dealer, both in
connection with the offering or sale of the Shares and for such period of
time thereafter as the Prospectus is required by the Act to be delivered
in connection therewith;
(f) if during the period specified in paragraph (e) any event shall
occur or information become known as a result of which in the opinion of
your counsel it becomes necessary to amend or supplement the Prospectus in
order to make the statements therein, in light of the circumstances
existing as of the date the Prospectus is delivered to a purchaser, not
misleading, or it is necessary to amend or supplement the Prospectus to
comply with any law, forthwith to prepare and, subject to paragraph 5(d)
above, it will file with the Commission at the sole expense of the Company
an appropriate amendment or supplement to the Prospectus so that the
statements of any material facts in the Prospectus, as so amended and
supplemented, will not in light of the circumstances when it is so
delivered, be misleading, or so that the Prospectus will comply with law
and it will furnish to the Underwriters and to such dealers as the
Underwriters shall specify, at the sole expense of the Company, such
number of copies thereof as such Underwriters or dealers may reasonably
request;
(g) prior to any public offering of the Shares, it will cooperate
with you and counsel for the Underwriters in connection with the
registration or qualification of the Shares for offer and sale by the
several Underwriters and by dealers under the state securities or Blue
Sky laws of such jurisdictions as you may request (provided, that the
Company shall not be obligated to qualify as a foreign corporation in any
jurisdiction in which it is not so qualified or to take any action which
would subject it to general consent to service of process in any
jurisdiction in which it is not now so subject); the Company will
continue such qualification in effect so long as required by law for the
distribution of the Shares and will file such consents to service of
process or other documents as may be necessary in order to effect such
registration or qualification (provided, that the Company shall not be
obligated to take any action that would subject it to general consent to
service of process in any jurisdiction in which it is not now so
subject);
(h) it will not, prior to the exercise in full or termination or
expiration of the option to purchase the Additional Shares, incur any
liability or obligation, direct or contingent, or enter into any material
transaction, other than in the ordinary course of business, except as
contemplated by the Prospectus and except for the long term credit
agreements currently being negotiated by the Company with Bank One;
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(i) it will not acquire any capital stock of the Company prior to
the exercise in full or termination or expiration of the option to
purchase the Additional Shares nor will the Company declare or pay any
dividend or make any other distribution upon the Common Stock payable to
stockholders of record on a date prior to the exercise in full or
termination or expiration of the option to purchase the Additional
Shares;
(j) it will mail and make generally available to its security
holders and furnish to the Underwriters as soon as reasonably practicable
a consolidated earnings statement covering a period of at least 12 months
beginning after the "effective date" (as defined in Rule 158 under the
Act) of the Registration Statement (but in no event commencing later than
90 days after such date) that will satisfy the provisions of Section
11(a) of the Act and Rule 158 thereunder and to advise you in writing
when such statement has been made so available;
(k) during the period of five years after the date of this
Agreement, it will furnish to you a copy (i) as soon as practicable after
the filing thereof, of each report filed by the Company with the
Commission, any securities exchange or the National Association of
Securities Dealers, Inc. ("NASD"); (ii) as soon as practicable after the
release thereof, of each press release relating to the Company; (iii) as
soon as available, of each report of the Company mailed to stockholders;
and (iv) as soon as available, such other publicly available information
concerning the Company as you may reasonably request;
(l) whether or not the transactions contemplated hereby are
consummated or this Agreement becomes effective as to all of its
provisions or is terminated, to pay all costs, fees, expenses and taxes
incident to the performance by the Company of its obligations hereunder,
including (i) the preparation, printing, filing and distribution under
the Act of the Registration Statement (including financial statements and
exhibits), each preliminary Prospectus and all amendments and supplements
to any of them prior to or during the period specified in paragraph (e)
above of this Section 5, (ii) the word processing, reproduction and
distribution of this Agreement, the Blue Sky Survey and any other
agreements, memoranda, correspondence and other documents prepared and
delivered by the Underwriters or their counsel in connection with the
offering of the Shares (including in each case any disbursements of
counsel for the Underwriters relating to such preparation and delivery),
(iii) the registration or qualification of the Shares for offer and sale
under the securities or Blue Sky laws of the several states, including in
each case the fees and disbursements of counsel for the Underwriters,
relating to such registration or qualification and memoranda relating
thereto, (iv) filings and clearance with the NASD in connection with the
offering and sale of the Shares, (v) the approval for quotation of the
Shares on the Nasdaq National Market, (vi) furnishing such copies of the
Registration Statement, each Preliminary Prospectus, the Prospectus and
all amendments and supplements thereto as may be requested for use in
connection with the offering or sale of the Shares by the Underwriters or
by dealers to whom the Shares may be sold, (vii) obtaining the opinions to
be provided pursuant to Section 8(g) of this Agreement and (viii) the
performance by the Company of all of its other obligations under this
Agreement; if the sale of the Shares provided for herein is not
consummated because the Underwriters
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exercise their right to terminate this Agreement pursuant to Section 9
hereof and any of the following have occurred during the term of this
Agreement: (a) there has been any material adverse change in the condition
(financial or otherwise), earnings, affairs, business or prospects of the
Company, or (b) the Company or any of the Selling Stockholders shall
refuse or be unable to comply with any provision hereof (except as the
result of a breach of this Agreement by the Underwriters), the Company
will promptly reimburse the Underwriters upon demand for all reasonable
out-of-pocket expenses (including the fees and disbursements of counsel
for the Underwriters) that shall have been incurred by the Underwriters in
connection with the proposed purchase and sale of Shares;
(m) it intends to use the net proceeds received by it from the sale
of the Shares being sold by it in the manner specified in the Prospectus
and it will file such reports with the Commission with respect to the
application of the proceeds therefrom as may be required in accordance
with Rule 463 under the Act and will furnish you copies of any such
reports as soon as practicable after the filing thereof;
(n) if, at the time of effectiveness of the Registration Statement,
any information shall have been omitted therefrom in reliance upon Rule
430A, then immediately following the execution and delivery of this
Agreement, it will prepare, and file or transmit for filing with the
Commission in accordance with such Rule 430A and Rule 424(b), copies of
an amended prospectus, or, if required by such Rule 430A, a
post-effective amendment to the Registration Statement (including an
amended prospectus), containing all information so omitted;
(o) it will cause the Shares to be approved for quotation, subject
to notice of issuance or sale, on the Nasdaq National Market; it will
comply with all registration, filing and reporting requirements of the
Securities Exchange Act of 1934, as amended, (the "Exchange Act") and the
Nasdaq National Market; and
(p) it will use its best efforts to do and perform all things
required to be done and performed under this Agreement by it prior to or
after the Closing Date or any Option Closing Date, as the case may be,
and to satisfy all conditions precedent to the delivery of the Shares.
6. Representations and Warranties.
(a) The Company represents and warrants, and the Selling
Stockholders severally and not jointly represent and warrant, to each
Underwriter as of the date hereof, the Closing Date and each Option
Closing Date that:
(i) the Commission has not issued any order preventing or
suspending the use of any Preliminary Prospectus relating to the
proposed offering of the Shares nor instituted or threatened any
proceedings for that purpose. The Registration Statement, on the
date it became or becomes effective, each Preliminary Prospectus,
on the date of the filing
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thereof with the Commission, and the Prospectus and any amendment or
supplement thereto, on the date of filing thereof with the
Commission (or if not filed, on the date provided by the Company to
the Underwriters in connection with the offering and sale of the
Shares) and at the Closing Date and each Option Closing Date
conformed or will conform with the requirements of the Act and the
rules and regulations promulgated thereunder ("Rules and
Regulations"); the Registration Statement, on the date it became or
becomes effective, did not or will not contain an untrue statement
of material fact or omit to state a material fact required to be
stated therein or necessary to make the statements therein not
misleading; each Preliminary Prospectus, on the date of the filing
thereof with the Commission, and the Prospectus and any amendment or
supplement thereto, on the date of filing thereof with the
Commission (or if not filed, on the date provided by the Company to
the Underwriters in connection with the offering and sale of the
Shares) and at the Closing Date and each Option Closing Date did not
and will not include an untrue statement of material fact or omit to
state a material fact required to be stated therein or necessary to
make the statements therein, in light of the circumstances under
which they were made, not misleading; the foregoing shall not apply
to statements in or omissions from the Registration Statement and
the Prospectus made or omitted in reliance upon, and in conformity
with, information relating to the Underwriters furnished in writing
to the Company by or on behalf of the Underwriters with your consent
expressly for use therein; the Company and the Selling Stockholders
hereby acknowledge for all purposes under this Agreement that (A)
the statements set forth under the caption "Underwriting" in the
Prospectus, (B) the stabilization and passive market making legends
on the gate-fold of the Prospectus and (C) footnotes 1 and 3 and the
last paragraph of text on the cover page of the Prospectus
constitute the only written information furnished to the Company by
or on behalf of the Underwriters for use in the preparation of the
Registration Statement or the Prospectus or any amendment or
supplement thereto;
(ii) the Company has no subsidiaries and has never had a
subsidiary; the Company has been duly incorporated and is a validly
existing corporation in good standing under the laws of Delaware,
with full corporate power and authority to own or lease its
properties and assets and to conduct its business as described in
the Registration Statement and the Prospectus and is duly qualified
to do business in each jurisdiction in which it owns or leases real
property or in which the conduct of its business or the ownership
or leasing of property requires such qualification, except where
the failure to be so qualified, either individually or in the
aggregate, would not have a material adverse effect on the
condition (financial or otherwise), business, assets, prospects,
net worth or results of operations of the Company taken as a whole
(a "Material Adverse Effect");
(iii) the capitalization of the Company is, and upon
consummation of the transactions contemplated hereby and by the
Prospectus will be, as set forth in the Registration Statement and
the Prospectus under the caption "Capitalization;" all of the
outstanding shares of capital stock of the Company have been duly
authorized and are validly issued, are fully paid and non-assessable
and conform to the description thereof in the Registration Statement
and the Prospectus and were
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not issued in violation of any preemptive rights or other rights to
subscribe for or purchase securities; and, except as set forth in
the Registration Statement and the Prospectus with respect to the
Option Plans, no options, warrants or other rights to purchase from
the Company, agreements or other obligations of the Company to issue
or other rights to convert any obligation into, or exchange any
securities for, shares of capital stock of or ownership interests in
the Company are outstanding; the description of the Company's 1992
Stock Option Plan and the other options or rights granted and
exercised thereunder, as set forth in the Registration Statement and
the Prospectus, accurately and fairly presents the information
required to be shown under the Act with respect to such options and
rights;
(iv) subsequent to the respective dates as of which
information is given in the Registration Statement and Prospectus,
and except as described therein, (A) the Company has not incurred
any material liabilities or obligations, direct or contingent, or
entered into any material transactions not in the ordinary course
of business, (B) the Company has not purchased any of its
outstanding capital stock or declared, paid or otherwise made any
dividend or distribution of any kind on its capital stock or
otherwise and (C) there has not been any material adverse change in
the Company's condition (financial or otherwise), business,
affairs, prospects or results of operations or any material change
in the Company's capital stock, short-term debt or long-term debt;
(v) the Shares to be sold by the Company pursuant to this
Agreement have been duly and validly authorized and, when issued,
delivered and paid for pursuant to this Agreement, will be validly
issued, fully paid and nonassessable, and will conform to the
description thereof contained in the Prospectus;
(vi) this Agreement has been duly authorized, executed and
delivered by the Company and is a legal, valid and binding
agreement of the Company enforceable in accordance with its terms,
except (i) as enforceability thereof may be limited by bankruptcy,
insolvency, reorganization, moratorium or other similar laws
affecting creditors' rights generally and by general equity
principles and (ii) that rights to indemnity or contribution
hereunder may be limited by Federal or state securities laws or the
public policy underlying such laws;
(vii) the Company is not in violation of its Certificate of
Incorporation or by-laws; the Company is not in violation of or in
breach of or in default in (nor has any event occurred that with
notice or lapse of time, or both, would be a breach of or a default
in) the performance of any obligation, agreement or condition
contained in any agreement, lease, contract, permit, license,
franchise agreement, mortgage, loan agreement, debenture, note,
deed of trust, bond, indenture or other evidence of indebtedness or
any other instrument or obligation (collectively, "Obligations and
Instruments") to which the Company is a party or by which the
Company or any of its properties or assets is bound or affected
(except for such contravention or default as would not have a
Material Adverse Effect); the
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Company is not in violation of any statute, judgment, decree, order,
Rule or regulation (collectively, "Laws") applicable to the Company
or any of its properties or assets that, alone, or together with
other violations of Laws would result in a Material Adverse Effect;
and, to the best knowledge of the Company, no other party under any
contract or other agreement to which the Company is a party is in
material default thereunder except for such defaults as would not
individually or in the aggregate result in a Material Adverse
Effect;
(viii) the execution, delivery and performance of this
Agreement and delivery of the Shares by the Company and compliance
by the Company with all the provisions hereof and the consummation
of the transactions contemplated hereby and as described in the
Prospectus will not, alone or upon notice or the passage of time or
both (A) require any consent, approval, authorization or other order
of any court, regulatory body, administrative agency or other
governmental body or third party (except such as may be required
under the Act and the securities or Blue Sky laws of the various
states or by the NASD), (B) result in the creation or imposition of
any lien, charge or encumbrance upon any of the properties or assets
of the Company pursuant to the terms and provisions of any
Obligation or Instrument, (C) conflict with or constitute a breach
or default under any Obligation or Instrument to which the Company
is a party or by which the Company or any of its properties or
assets is bound, (except for such creation, conflict, breach or
default as would not have a Material Adverse Effect), or (D)
assuming compliance with the Act and all applicable state securities
or Blue Sky laws, violate or conflict with any Laws applicable to
the Company or any of its properties or assets (except for such
violation or conflict as could not have a Material Adverse Effect);
no action, suit or proceeding before any court or arbitrator or any
governmental body, agency or official (domestic or foreign) is
pending against or, to the knowledge of the Company, threatened
against the Company, that, if adversely determined, could reasonably
be expected to in any manner invalidate this Agreement;
(ix) except as set forth in the Prospectus, there is no
action, suit, proceeding, inquiry or investigation, governmental or
otherwise before any court, arbitrator or governmental agency or
body (collectively, "Proceedings") pending to which the Company is
a party or to which any of its properties or assets are subject,
that, if determined adversely to the Company, might result in a
Material Adverse Effect, or that might materially and adversely
affect the properties or assets thereof, or that seeks to restrain,
enjoin, prevent the consummation of or otherwise challenge the
issuance or sale of any of the Shares to be sold hereunder or the
consummation of the transactions described in the Prospectus and, to
the best knowledge of the Company after due inquiry, no such
Proceedings are threatened or contemplated; and there is no
contract, document, agreement or transaction to which the Company is
a party, or that involved or involves the Company or any of its
properties or assets that are required to be described in or filed
as exhibits to the Registration Statement or the Prospectus by the
Act or the Rules and Regulations that have not been so described or
filed; no action has been
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taken with respect to the Company, and, to the best knowledge of
the Company and the Selling Stockholders, no statute, Rule or
regulation or order has been enacted, adopted or issued by any
governmental agency that suspends the effectiveness of the
Registration Statement, prevents or suspends the use of any
Preliminary Prospectus or the Prospectus or suspends the sale of
the Shares in any jurisdiction referred to in Section 5(g) hereof;
no injunction, restraining order or order of any nature by a
federal or state court of competent jurisdiction has been issued
with respect to the Company that might prevent the issuance of the
Shares, suspend the effectiveness of the Registration Statement,
prevent or suspend the use of any Preliminary Prospectus or the
Prospectus or suspend the sale of the Shares in any jurisdiction
referred to in Section 5(g) hereof; and every request of the
Commission, or any securities authority or agency of any
jurisdiction, for additional information (to be included in the
Registration Statement or the Prospectus or otherwise) has been
complied with in all material respects;
(x) the Company has not violated any foreign, federal, state
or local law or regulation relating to the protection of human
health and safety, the environment or hazardous or toxic substances
or wastes, pollutants or contaminants ("Environmental Laws"), nor
any foreign, Federal, state or local law relating to discrimination
in the hiring, promotion or pay of employees nor any applicable
foreign, Federal or state wages and hours laws, nor any provisions
of the Employee Retirement Income Security Act of 1974, as amended
or the rules and regulations promulgated thereunder or similar
foreign laws, that, in each case or in the aggregate, might result
in a Material Adverse Effect; none of the property leased by the
Company is contaminated with any waste or hazardous substances
(except that certain leased locations may contain asbestos or
certain cleaning materials, the presence of which will not result
in a Material Adverse Effect), nor may the Company be deemed an
"owner or operator" of a "facility" or "vessel" that owns,
possesses, transports, generates, discharges or disposes of a
"hazardous substance" as those terms are defined in Section 9601 of
the Comprehensive Response Compensation and Liability Act of 1980,
U.S.C. Section 9601 et seq.;
(xi) the Company has such permits, licenses, franchises and
authorizations of governmental or regulatory authorities or third
parties ("Permits"), including, without limitation, under any
applicable Environmental Laws, as are necessary to own, lease and
operate its properties and assets and to conduct its businesses,
except where the failure to have any such Permit would not have a
Material Adverse Effect; the Company has fulfilled and performed
all of its material obligations with respect to such Permits and no
event has occurred that allows, or after notice or lapse of time,
or both would allow, revocation or termination thereof or result in
any other material impairment of the rights of the holder of any
such Permit; and except as described in the Prospectus, such
Permits contain no restrictions that are materially burdensome to
the Company;
(xii) the Company is not, and does not intend to conduct its
business in a manner in which it would become, an "investment
company" or a company
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"controlled" by an "investment company" within the meaning of the
Investment Company Act of 1940, as amended (the "Investment Company
Act");
(xiii) except as otherwise set forth in the Prospectus, the
Company has good and marketable title, free and clear of all liens,
claims, encumbrances and restrictions (except liens for
taxes not yet due and payable) to all property and assets described
in the Registration Statement as being owned by it; all leases to
which the Company is a party are subsisting, valid and binding and
no default of the Company or, as applicable, any of the Selling
Stockholders or their respective affiliates or, to the best
knowledge of the Company and the Selling Stockholders, any other
person has occurred or is continuing thereunder that might result in
a Material Adverse Effect; and the Company enjoys peaceful and
undisturbed possession under all such leases to which the Company is
a party as lessee with such exceptions as do not materially
interfere with the use made thereof by the Company;
(xiv) the Company maintains reasonably adequate insurance for
the conduct of its business in accordance with prudent business
practices (and the insurance maintained by retailers generally)
with reputable third-party insurers;
(xv) to the best knowledge of the Company and the Selling
Stockholders, Ernst & Young LLP, the accounting firm that has
certified or reviewed, or shall certify or review, the financial
statements and supporting schedules filed or to be filed with the
Commission as part of the Registration Statement and the
Prospectus, is an independent public accounting firm with respect
to the Company as required by the Act;
(xvi) the consolidated financial statements of the Company,
together with related notes and schedules of the Company included
in the Registration Statement and the Prospectus, are accurate and
present fairly the financial position, results of operations and
cash flows of the Company at the indicated dates and for the
indicated periods; such financial statements have been prepared in
accordance with generally accepted accounting principles ("GAAP")
consistently applied throughout the periods involved, and all
adjustments necessary for a fair presentation of results for such
periods have been made and any unaudited financial statements have
been prepared on a basis substantially consistent with that of the
audited operating financial statements included in the Registration
Statement and the Prospectus; and the summary and selected
financial and operating data included in the Registration Statement
and the Prospectus presents fairly the information shown therein
and have been compiled on a basis consistent with the audited and
any unaudited financial statements, as the case may be, included
therein; and the pro forma information included in the Prospectus
present fairly the information shown therein, have been prepared in
accordance with GAAP and the Commission's rules and guidelines with
respect to pro forma financial statements and other pro forma
information, have been properly compiled on the pro forma basis
described therein, and the assumptions used in the preparation
thereof are
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reasonable and the adjustments used therein are appropriate under
the circumstances;
(xvii) no holder of any security of the Company has any right
to require inclusion of any such security in the Registration
Statement; there are no preemptive rights with respect to the
offering being made by the Prospectus;
(xviii) except as disclosed in the Registration Statement and
the Prospectus, no labor dispute with the employees of the Company
exists, or to the best knowledge of the Company after due inquiry,
is imminent, that could result in a Material Adverse Effect; and
the Company has not received notice of any existing or imminent
labor disturbance by the employees of any of its principle
suppliers, customers, manufacturers or contractors that could
result in any Material Adverse Effect;
(xix) the Company has filed or caused to be filed, or has
properly filed extensions for, all foreign, federal, state and
local income, value added and franchise tax returns and has paid
all taxes and assessments shown thereon as due, except for such
taxes and assessments as are disclosed or adequately reserved
against and that are being contested in good faith by appropriate
proceedings, promptly instituted and diligently conducted; all
material tax liabilities are adequately provided for on the books of
the Company, and there is no material tax deficiency that has been
or might be asserted against the Company that is not so provided
for;
(xx) the Company owns or possesses, or can acquire on
reasonable terms, the patents, patent rights, licenses, inventions,
copyrights, know-how (including trade secrets and other unpatented
and or unpatentable proprietary or confidential information,
systems or procedures), trademarks, service marks and trade names
(collectively, "Patents and Proprietary Rights") currently employed
by it in connection with the business it now operates except where
the failure to so own, possess or acquire such Patents and
Proprietary Rights would not have a Material Adverse Effect; and
the Company has not received any notice and is not otherwise aware
of any infringement of or conflict with asserted rights of others
with respect to any Patent or Proprietary Rights that, if the
subject of any unfavorable decision, ruling or finding, singly or
in the aggregate, could result in a Material Adverse Effect;
(xxi) the Company has conducted, is conducting and intends to
conduct its business so as to comply in all material respects with
applicable federal, state, local and foreign government Laws,
except where the failure to comply would not have a Material
Adverse Effect; and except as set forth in the Registration
Statement and the Prospectus, the Company is not charged with or,
to the Company's knowledge after due inquiry, under investigation
with respect to, any material violation of any such Laws;
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(xxii) the Company has not taken and will not take, directly or
indirectly, any action designed to or which has constituted or that
might reasonably be expected to cause or result, under the Exchange
Act or otherwise, in stabilization or manipulation of the price of
any security of the Company to facilitate the sale or resale of the
Shares;
(xxiii) neither the Company nor, to the best knowledge of the
Company and the Selling Stockholders, any employee or agent of the
Company has made any payment of funds of the Company or received or
retained any funds in violation of any law, Rule or regulation
(including, without limitation, the Foreign Corrupt Practices Act)
or of a character required to be disclosed in the Prospectus; the
Company has not, at any time during the past five years, (1) made
any unlawful contributions to any candidate for any political
office, or failed fully to disclose any contribution in violation
of law, or (2) made any unlawful payment to state, federal or
foreign government officer or officers, or other person charged
with similar public or quasi-public duty;
(xxiv) no transaction has occurred between or among the
Company and any of the Company's officers or directors or any
affiliate or affiliates of any such officer or director that is
required to be described in and is not described in the
Registration Statement and the Prospectus;
(xxv) other than as provided to the Underwriters under this
Agreement, the Company has not incurred any liability for finder's
or broker's fees or agent's commissions in connection with the
execution and delivery of this Agreement, the offer and sale of the
Shares or the transactions hereby contemplated;
(xxvi) the Company maintains a system of internal accounting
controls sufficient to provide reasonable assurance that (i)
transactions are executed in accordance with management's general
or specific authorizations, (ii) transactions are recorded as
necessary to permit preparation of financial statements in
conformity with GAAP and to maintain asset accountability, (iii)
access to assets is permitted only in accordance with management's
general or specific authorization, and (iv) the recorded
accountability for inventory is compared with the existing
inventory at reasonable intervals and appropriate action is taken
with respect to any differences; and
(xxvii) there is no material document of a character required
to be described in the Registration Statement or the Prospectus or
to be filed as an exhibit to the Registration Statement that is not
described or filed as required.
(b) In addition to the foregoing, the Selling Stockholders severally
and not jointly represent and warrant to, and agree with, the
Underwriters that:
(i) Such Selling Stockholder has all requisite power to enter
into this Agreement and to sell, assign, transfer and deliver to
the Underwriters the Shares
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to be sold by such Selling Stockholder hereunder in accordance with
the terms of this Agreement. This Agreement has been duly executed
and delivered by such Selling Stockholder and constitutes and will
constitute the legal, valid and binding obligation of such Selling
Stockholder enforceable against such Selling Stockholder in
accordance with its terms, except (i) as the enforceability thereof
may be limited by bankruptcy, insolvency, reorganization, moratorium
or other similar laws affecting the creditors' rights generally and
by general equity principles and (ii) that rights to indemnity or
contribution hereunder may be limited by Federal or state securities
laws or the public policy underlying such laws.
(ii) Such Selling Stockholder has duly executed and delivered
a power of attorney and custody agreement (with respect to such
Selling Stockholder, the "Power-of-Attorney" and the "Custody
Agreement," respectively), each in the form heretofore delivered to
the Representatives, appointing each of Xxxxxxx Xxxxxx and Xxxxxxxx
Xxxxxx, individually, as such Selling Stockholder's
attorney-in-fact (in each case, the "Attorney-in-Fact") with
authority to execute, deliver and perform this Agreement on behalf
of such Selling Stockholder and appointing Norwest Bank Minnesota,
N.A., as custodian thereunder (the "Custodian"). Certificates in
negotiable form, endorsed in blank or accompanied by blank stock
powers duly executed, with signatures appropriately guaranteed,
representing the Shares to be sold by such Selling Stockholder
hereunder have been deposited with the Custodian pursuant to the
Custody Agreement for the purpose of delivery pursuant to this
Agreement. Such Selling Stockholder has full power to enter into
the Custody Agreement and the Power-of-Attorney and to perform its
obligations under the Custody Agreement. The Custody Agreement and
the Power-of-Attorney have been duly executed and delivered by such
Selling Stockholder and are the legal, valid, binding and
enforceable instruments of such Selling Stockholder, except (i) as
the enforceability thereof may be limited by bankruptcy,
insolvency, reorganization, moratorium or other similar laws
affecting creditors' rights generally and by general equity
principles and (ii) that rights to indemnity or contribution
hereunder may be limited by Federal or state securities laws or the
public policy underlying such laws. Such Selling Stockholder
agrees that each of the Shares represented by the certificates on
deposit with the Custodian is subject to the interests of the
Underwriters hereunder, that the arrangements made for such
custody, the appointment of the Attorneys-in-Fact and the right,
power and authority of the Attorneys-in-Fact to execute and deliver
this Agreement and to carry out the terms of this Agreement, are to
that extent irrevocable and that the obligations of such Selling
Stockholder hereunder shall not be terminated, except as provided
in this Agreement or the Custody Agreement, by any act of such
Selling Stockholder, by operation of law or otherwise, whether in
the case of any individual Selling Stockholder by the death or
incapacity of such Selling Stockholder, in the case of a trust or
estate by the death of the trustee or trustees or the executor or
executors or the termination of such trust or estate, or in the
case of a corporate or partnership Selling Stockholder by its
liquidation or dissolution or by the occurrence of any other event.
If any individual Selling
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Stockholder, trustee or executor should die or become incapacitated
or any such trust should be terminated, or if any corporate or
partnership Selling Stockholder shall liquidate or dissolve, or if
any other event should occur, before the delivery of such Shares
hereunder, the certificates for such Shares deposited with the
Custodian shall be delivered by the Custodian in accordance with the
respective terms and conditions of this Agreement as if such death,
incapacity, termination, liquidation or dissolution or other event
had not occurred, regardless of whether or not the Custodian or the
Attorneys-in-Fact shall have received notice thereof.
(iii) Such Selling Stockholder is the lawful record and
beneficial owner of the Shares to be sold by such Selling
Stockholder hereunder. Upon sale and delivery of, and payment for,
such Shares, as provided herein, such Selling Stockholder will
convey good and marketable title to such Shares, free and clear of
any security interests, liens, encumbrances, equities, claims,
options, rights of third parties or other defects.
(iv) Such Selling Stockholder has reviewed the Prospectus (or,
if the Prospectus is not in existence, the most recent Preliminary
Prospectus) and the Registration Statement, and the information
regarding such Selling Stockholder set forth therein under the
caption "Principal and Selling Stockholders" is complete and
accurate.
(v) The sale by such Selling Stockholder of Shares pursuant
hereto is not prompted by any adverse information concerning the
Company or any Subsidiary that is not set forth in the Registration
Statement or the Prospectus (or, if the Prospectus is not in
existence, the most recent Preliminary Prospectus).
(vi) The sale of the Shares to the Underwriters by such
Selling Stockholder pursuant to this Agreement, the compliance by
such Selling Stockholder with the other provisions of this
Agreement, the Custody Agreement and the consummation of the other
transactions herein contemplated do not (A) require the consent,
approval, authorization, registration or qualification of or with
any governmental authority, except such as have been obtained, such
as may be required under state and foreign Blue Sky laws and, if
the Registration Statement is not effective under the Securities
Act as of the time of execution hereof, such as may be required
(and shall be obtained as provided in this Agreement) under the
Securities Act and the Exchange Act, or (B) result in a breach or
violation of any of the terms and provisions of, or constitute a
default under, any indenture, mortgage, deed of trust, lease or
other agreement or instrument to which such Selling Stockholder is
a party or by which such Selling Stockholder or any of such Selling
Stockholder's properties are bound, or any statute or any judgment,
decree, order, rule or regulation of any court or other
governmental authority or any arbitrator applicable to such Selling
Stockholder; and
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(vii) none of the Selling Stockholders nor any trustee or
beneficiary of the Selling Stockholders is affiliated as a
director, officer, partner, stock holder, or otherwise with any
securities broker or dealer which is a member of the NASD or any
other organization that owns or controls any member of the NASD.
(c) Any certificate signed by any officer of the Company and
delivered to you or to counsel for the Underwriters shall be deemed a
representation and warranty made by the Company and each of the Selling
Stockholders to each Underwriter as to the matters covered thereby and,
severally and not jointly, shall be deemed incorporated herein in its
entirety and shall be effective as if such representation and warranty
were made herein; and any certificate signed by the Selling Stockholders
as such and delivered to you or to counsel for the Underwriters shall
also be deemed a representation and warranty made by the Company and,
severally and not jointly, each of the Selling Stockholders to each
Underwriter as to the matters covered thereby and shall also be deemed
incorporated herein in its entirety and shall be effective as if such
representation and warranty were made herein; provided, however, that the
indemnification contained in this paragraph with respect to any
Preliminary Prospectus shall not inure to the benefit of any Underwriter
(or to the benefit of any person controlling such Underwriter or any
employee of such Underwriter) on account of any such loss, liability,
claim, damage or expense arising from the sale of the Firm Shares or
Additional Shares by such Underwriter to any person if a copy of the
Prospectus shall not have been sent to such person within the time
required by the Act and the Regulations, and the untrue statement or
alleged untrue statement or omission or alleged omission of a material
fact contained in such Preliminary Prospectus was corrected in the
Prospectus, as amended or supplemented, provided that the Company had
delivered the Prospectus, as amended or supplemented, to the several
Underwriters on a timely basis to permit such delivery or sending.
7. Indemnification.
(a) The Company agrees, and, subject to Section 7(e) below, the
Selling Stockholders, severally and not jointly agree, to indemnify and
hold harmless each of the Underwriters and each person, if any, who
controls each of the Underwriters within the meaning of Section 15 of the
Act or Section 20 of the Exchange Act (collectively the Underwriters and
each such person are referred to herein as the "indemnified parties")
from and against any and all losses, claims, damages, liabilities and
judgments caused by, arising out of, related to or based upon any untrue
statement or alleged untrue statement of a material fact contained in the
Registration Statement (as amended or supplemented if the Company shall
have furnished any amendments or supplements thereto), including the
information deemed to be part of the Registration Statement at the time
of effectiveness pursuant to Rule 430A, if applicable, or the Prospectus
or any Preliminary Prospectus or caused by any omission or alleged
omission to state therein a material fact required to be stated therein
or necessary to make the statements therein not misleading; provided,
however, that neither the Company nor any Selling Stockholder shall be
liable in any such case to the extent that such losses, claims, damages,
liabilities or judgments are caused by an untrue statement or omission
made or omitted in reliance upon, and in conformity with,
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information relating to the Underwriters furnished in writing to the
Company by or on behalf of the Underwriters with your consent expressly
for use therein.
(b) In case any action shall be brought against any of the
indemnified parties, based upon any Preliminary Prospectus, the
Registration Statement or the Prospectus or any amendment or supplement
thereto and with respect to which indemnity may be sought against the
Company or any Selling Stockholder, such indemnified parties shall
promptly notify the Company (and the Selling Stockholders, care of the
Company) in writing (but the failure so to notify shall not relieve the
Company or the Selling Stockholders of any liability that they may
otherwise have to such indemnified parties under this Section 7 (although
the Company's and the Selling Stockholders' liability to an indemnified
party may be reduced on a monetary basis to the extent, but only to the
extent, they have been prejudiced by such failure on the part of such
indemnified party)), and the Company and the Selling Stockholders shall
promptly assume the defense thereof, including the employment of counsel
reasonably satisfactory to such indemnified party and payment of all fees
and expenses. The indemnified parties shall each have the right to
employ separate counsel in any such action and participate in the defense
thereof, but the fees and expenses of such counsel shall be at the
expense of such indemnified parties unless (i) the employment of such
counsel shall have been specifically authorized by the Company, (ii) the
Company and the Selling Stockholders shall have failed to assume promptly
the defense or to employ counsel reasonably satisfactory to such
indemnified party or (iii) the named parties to any such action
(including any impleaded parties) include both the indemnified parties
and the Company or the Selling Stockholders, and an indemnified party
shall have been advised by counsel that there may be one or more legal
defenses available to one or more of the indemnified parties that are
different from or additional to those available to the Company or the
Selling Stockholders (in which case the Company and the Selling
Stockholders shall not have the right to assume the defense of such
action on behalf of such indemnified party, it being understood, however,
that the Company and the Selling Stockholders shall not, in connection
with any one such action or separate but substantially similar or related
actions in the same jurisdiction arising out of the same general
allegations or circumstances, be liable for the fees and expenses of more
than one separate firm of attorneys (in addition to any local counsel)
for the indemnified parties, which firm shall be designated in writing by
EVEREN Securities, Inc., and that all such fees and expenses shall be
reimbursed promptly as they are incurred). The Company and the Selling
Stockholders shall not be liable for any settlement of any such action
effected without their written consent, which consent shall not be
unreasonably withheld, but if settled with the written consent of the
Company and the Selling Stockholders, the Company and the Selling
Stockholders agree to indemnify and hold harmless the indemnified parties
from and against any and all loss or liability by reason of such
settlement. Notwithstanding the foregoing sentence, if at any time an
indemnified party shall have requested indemnifying party to reimburse
the indemnified party for fees and expenses of counsel as contemplated by
the second sentence of this paragraph, the indemnifying party agrees that
it shall be liable for any settlement of any proceeding effected without
its written consent if (i) such settlement is entered into more than 10
business days after delivery by registered or certified mail to the
proper address for notice
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to such indemnifying party of the aforesaid request (whether or not such
delivery is accepted) and (ii) such indemnifying party shall not have
reimbursed the indemnified party in accordance with such request prior to
the date of such settlement. No indemnifying party shall, without the
prior written consent of the indemnified party, effect any settlement of
any pending or threatened proceeding in respect of which any indemnified
party is or could reasonably have been expected to have been made a party
and indemnity could have been sought hereunder by such indemnified party,
unless such settlement includes an unconditional and complete release in
writing of such indemnified party from any and all liability on claims
that are the subject matter of such proceeding, which such settlement
shall be in form and substance reasonably satisfactory to the indemnified
party. The indemnification provided in this Section 7 will be in addition
to any liability which the Company and the Selling Stockholders may
otherwise have.
(c) The Underwriters agree, severally and not jointly, to indemnify
and hold harmless the Selling Stockholders, the Company, its directors,
its officers who sign the Registration Statement and any person
controlling the Company or any Selling Stockholder within the meaning of
Section 15 of the Act or Section 20 of the Exchange Act, to the same
extent as the foregoing indemnity from the Company and the Selling
Stockholders to the Underwriters but only with reference to information
stated in or omitted from the Registration Statement, the Prospectus or
any Preliminary Prospectus in reliance upon, and in conformity with,
information relating to the Underwriters furnished in writing to the
Company by or on behalf of the Underwriters with your consent expressly
for use therein. In case any action shall be brought against the
Company, any of the Selling Stockholders, any of the Company's directors,
any such officers or any person controlling the Company based on the
Registration Statement, the Prospectus or any Preliminary Prospectus and
in respect of which indemnity may be sought against the Underwriters, the
Underwriters shall have the rights and duties given to the Company and
the Selling Stockholders by Section 7(b) hereof (except that if the
Company and the Selling Stockholders shall have assumed the defense
thereof, such Underwriter shall not be required to do so, but may employ
separate counsel therein and participate in the defense thereof but the
fees and expenses of such counsel shall be at the expense of such
Underwriter), and the Selling Stockholders, the Company, its directors,
any such officers and any person controlling the Company shall have the
rights and duties given to the "indemnified parties" by Section 7(b)
hereof.
(d) To provide for just and equitable contribution, if an
indemnified party makes a claim for indemnification pursuant to Section 7
(subject to the limitations hereof) but it is found in a final judicial
determination, not subject to further appeal, that such indemnification
may not be enforced in such case, even though this Agreement expressly
provides for indemnification in such case, then each indemnifying party,
in lieu of indemnifying such indemnified party, shall contribute to the
amount paid or payable by such indemnified party as a result of such
losses, claims, damages, liabilities and judgments (i) in such proportion
as is appropriate to reflect the relative benefits received by the
Company and the Selling Stockholders on the one hand and the Underwriters
on the other from the offering of the Securities or (ii) if the
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allocation provided in clause (i) above is not permitted by applicable
law, in such proportion as is appropriate to reflect not only the relative
benefits referred to in clause (i) above but also the relative fault of
the Company and the Selling Stockholders on the one hand and the
Underwriters on the other in connection with the statements or omissions
or alleged statements or omissions that resulted in such losses, claims,
damages, liabilities or judgments, as well as any other relevant equitable
considerations. The relative benefits received by the Company and the
Selling Stockholders on the one hand and the Underwriters on the other
shall be deemed to be in the same proportion as the total net proceeds
from the offering and sale of the Shares (before deducting expenses)
received by the Company and the Selling Stockholders on the one hand, and
the total underwriting discounts and commissions received by the
Underwriters on the other, bears to the total price to the public of the
Shares, in each case as set forth in the table on the cover page of the
Prospectus. The relative fault of the Company, the Selling Stockholders
and the Underwriters shall be determined by reference to, among other
things, whether the untrue or alleged untrue statement of a material fact
or the omission or the alleged omission to state a material fact relates
to information supplied by the Company, the Selling Stockholders or the
Underwriters and the parties' relative intent, knowledge, access to
information and opportunity to correct or prevent such statement or
omission.
The Company, the Selling Stockholders and the Underwriters agree
that it would not be just and equitable if contribution pursuant to this
Section 7(d) were determined by pro rata allocation (even if the
Underwriters or the Selling Stockholders were treated as one entity for
such purpose) or by any other method of allocation that does not take
account of the equitable considerations referred to in the immediately
preceding paragraph. The amount paid or payable by an indemnified party
as a result of the losses, claims, damages, liabilities or judgments
referred to in the immediately preceding paragraph shall be deemed to
include, subject to the limitations set forth above, any legal or other
expenses reasonably incurred by such indemnified party in connection with
investigating or defending any such action or claim. Notwithstanding the
provisions of this Section 7, no Underwriter shall be required to
contribute any amount in excess of the amount by which the total price at
which the Shares underwritten by it and distributed to the public were
offered to the public exceeds the amount of any damages which such
Underwriter has otherwise paid or been required to pay by reason of such
untrue or alleged untrue statement or omission or alleged omission, and
the Selling Stockholders shall not be required to contribute, more in the
aggregate than the Maximum Amount (as defined below). No person guilty
of fraudulent misrepresentation (within the meaning of Section 11(f) of
the Act) shall be entitled to contribution from any person who was not
guilty of such fraudulent misrepresentation. The Underwriters'
obligation in this Section 7(d) to contribute are several in proportion
to the respective amount of Shares purchased hereunder by each
Underwriter and not joint.
(e) (i) The liability of each Selling Stockholder under this Section
7, together with any liability for any breach of any representation,
warranty, covenant or other provision of this Agreement, shall be limited
to the proceeds received by such Selling Stockholder from the sale of
such Selling Stockholder's Shares pursuant to this Agreement, net of (i)
underwriting discounts and commissions paid by such Selling
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Stockholder to the Underwriters in connection with such sale, and (ii)
federal and state income taxes paid by such Selling Stockholder on the
proceeds received by such Selling Stockholder as a consequence of such
sale. The foregoing limitation for each Selling Stockholder is referred
to as the "Maximum Amount."
(ii) In addition, the liability of each Selling Stockholder under
this Section 7, together with any liability for any breach of any
representation, warranty, covenant or other provision of this Agreement,
shall be proportional based on the ratio that the number of Shares being
sold by such Selling Stockholder bears to the total number of Shares
being sold by all Selling Stockholders; provided, however, that with
respect to the breach of any representation or warranty in Section 6(b),
such liability shall not be so proportional, no Selling Stockholder shall
be liable for the breach of any such representation or warranty by any
other Selling Stockholder, and each Selling Stockholder shall be liable
in full (not to exceed the Maximum Amount) with respect to any breach
thereof by such Selling Stockholder.
(f) No Underwriter or controlling person may obtain any remedies
from any Selling Stockholder for any specific claim under this Agreement
(except for any claim based upon the breach by any Selling Stockholder of
any representation or warranty in any of Section 6(b)(i) through Section
6(b)(vii) to which this restriction shall not apply), until such
Underwriter or controlling person has first used all reasonable efforts
to pursue and exhaust all remedies it may have against the Company with
respect to such specific claim. Without limiting the generality of the
foregoing, an Underwriter or controlling person shall be deemed to have
used all reasonable efforts to pursue and exhaust all remedies it may
have against the Company with respect to such specific claim, and may
pursue any remedies it may have against the Selling Stockholder, if (A)
such Underwriter or controlling person is in the process of pursuing
remedies against the Company and any of the following events occurs, or,
prior to the time at which such Underwriter or controlling person
commences the process of pursuing remedies against the Company, any of
the following events has occurred and is continuing: (1) the Company
files a petition, answer or any pleading seeking or acquiescing in any
reorganization, liquidation or other relief under chapter 7 or 11 of the
Bankruptcy Code; (2) the Company seeks or acquiesces in the appointment
of a trustee (other than a trustee appointed solely for the purposes of
facilitating the issuance of any debt securities of the Company),
receiver or liquidator of all or part of its assets; or (3) the Company
makes a general assignment for the benefit of its creditors, (B) a court
of competent jurisdiction: (1) appoints a trustee, receiver or liquidator
of all or part of the Company's assets; or (2) determines in any action,
suit or proceeding that the Company is insolvent (in the accounting,
bankruptcy, equity or legal definitions), or (C) a court or arbitration
panel of competent jurisdiction enters an order in any action, suit or
proceeding by such Underwriter or controlling person against the Company
that is materially adverse to such Underwriter or controlling person, and
is either an order on the merits of such action, suit or proceeding, or
is an order relating to a procedural question which likely would
materially impact the ability of such Underwriter or controlling person
to recover its claims against the Company. Notwithstanding the foregoing,
if, in the reasonable judgment of any Underwriter or controlling person,
the applicable statute of limitations for any potential action, suit or
proceeding by such Underwriter or controlling person for indemnification
against the Selling Stockholder will expire, such Underwriter or
controlling person may name the Selling Stockholder in any action, suit
or proceeding to which the Company is also a party solely for purposes of
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preserving any rights such Underwriter or controlling person may have to
seek indemnification from the Selling Stockholder after having used its
reasonable efforts to pursue and exhaust all remedies it may have against
the Company.
8. Conditions of the Obligations of the Underwriters. The obligations of
the several Underwriters to purchase and pay for the Firm Shares on the Closing
Date and the Additional Shares on any Option Closing Date are subject to the
fulfillment of each of the following conditions on or prior to the Closing Date
and each Option Closing Date:
(a) All the representations and warranties of the Company and the
Selling Stockholders contained in this Agreement and in any certificate
delivered hereunder shall be true and correct on the Closing Date and
each Option Closing Date with the same force and effect as if made on and
as of the Closing Date or Option Closing Date, as applicable. The
Company and the Selling Stockholders shall not have failed at or prior to
the Closing Date or Option Closing Date, as applicable, to perform or
comply in all respects with any of the agreements herein contained and
required to be performed or complied with by the Company or the Selling
Stockholders at or prior to the Closing Date.
(b) If the Registration Statement is not effective at the time of
the execution and delivery of this Agreement, the Registration Statement
shall have become effective (or, if a post-effective amendment is
required to be filed pursuant to Rule 430A under the Act, such
post-effective amendment shall have become effective) not later than 9:30
A.M., New York City time, on the date of this Agreement or such later
time as you may approve in writing or, if the Registration Statement has
been declared effective prior to the execution and delivery hereof in
reliance on Rule 430A, the Prospectus shall have been filed as required
hereby, if necessary; and at the Closing Date and each applicable Option
Closing Date, no stop order suspending the effectiveness of the
Registration Statement shall have been issued and no proceedings for that
purpose shall have been commenced or shall be pending before or, to the
best knowledge of the Underwriters, the Company or the Selling
Stockholders, threatened by the Commission; every request for additional
information on the part of the Commission shall have been complied with
to the Underwriters' satisfaction; no stop order suspending the sale of
the Shares in any jurisdiction referred to in Section 5(g) shall have
been issued and no proceeding for that purpose shall have been commenced
or shall be pending or threatened.
(c) The Shares shall have been qualified for sale under the Blue Sky
laws of such states as shall have been specified by the Representatives.
(d) The legality and sufficiency of the authorization, issuance and
sale or transfer and sale of the Shares hereunder, the validity and form
of the certificates representing the Shares, the execution and delivery
of this Agreement and all corporate proceedings and other legal matters
incident thereto, and the form of the Registration Statement and the
Prospectus (except financial statements) shall have been approved by
counsel for the Underwriters exercising reasonable judgment, and no
Underwriter shall have advised the Company that the Registration Statement
or the Prospectus, or any amendment or supplement thereto, contains an
untrue statement of material fact, or omits
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to state a fact that in your opinion is material and is required to be
stated therein or is necessary to make the statements therein not
misleading.
(e) Subsequent to the execution and delivery of this Agreement,
there shall not have occurred any material change, or any material
development involving a prospective change, in or affecting particularly
the business or properties of the Company, whether or not arising in the
ordinary course of business, that, in the judgment of the
Representatives, makes it impractical or inadvisable to proceed with the
public offering or purchase of the Shares as contemplated hereby.
(f) You shall have received an agreement from each of the officers
and directors who are not Selling Stockholders of the Company (the
"Additional Stockholders"), whereby each such officer or director agrees
to be bound by an agreement to the same effect as the covenants set forth
in the last paragraph of Section 3 of this Agreement (the "Lock-Up
Agreements").
(g) You shall have received an opinion (satisfactory to you and your
counsel) dated the Closing Date or the Option Closing Date, as the case
may be, of McGuire, Woods, Battle & Xxxxxx, L.L.P., counsel for the
Company and the Selling Stockholders, in form and substance satisfactory
to the Representatives as set forth in Exhibit A.
(h) You shall have received an opinion of Xxxxxx, Xxxx & Xxxxxxxx
LLP, counsel for the Underwriters, dated the Closing Date or the Option
Closing Date, as the case may be, in form and substance satisfactory to
the Representatives.
(i) You shall have received, in connection with the execution of
this Agreement and on the Closing Date and each Option Closing Date, a
"cold comfort" letter from Ernst & Young LLP, dated as of each such date
in form and substance satisfactory to you with respect to the financial
statements and certain financial information and data contained in the
Registration Statement and the Prospectus.
(j) You shall have received from the Company a certificate, signed
by Xxxxxxx X. Xxxxxx, J. Xxxxxxx Xxxxx and H. Xxxxxxxx Xxxxxx, Xx. in
their capacities as Chief Executive Officer, President and Chief
Financial Officer of the Company, respectively, addressed to the
Underwriters and dated the Closing Date or Option Closing Date, as
applicable to the effect that:
(i) such officer does not know of any Proceedings instituted,
threatened or contemplated against the Company of a character
required to be disclosed in the Prospectus that are not so
disclosed; such officer does not know of any material contract
required to be filed as an exhibit to the Registration Statement
which is not so filed;
(ii) such officer has carefully examined the Registration
Statement and the Prospectus and all amendments or supplements
thereto and, in such officer's opinion, such Registration Statement
or such amendment as of its effective date
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and as of the Closing Date, and the Prospectus or such supplement as
of its date and as of the Closing Date, did not contain an untrue
statement of material fact or omit to state a material fact required
to be stated therein or necessary in order to make the statements
therein not misleading and, in such officer's opinion, since the
effective date of the Registration Statement, no event has occurred
or information become known that should have been set forth in an
amendment to the Registration Statement or a supplement to the
Prospectus which has not been so set forth in such amendment or
supplement;
(iii) the representations and warranties of the Company set
forth in Section 6(a) of this Agreement are true and correct as of
the date of this Agreement and as of the Closing Date or the Option
Closing Date, as the case may be, and the Company has complied with
all the agreements and satisfied all the conditions on its part to
be performed or satisfied at or prior to such Closing Date; and
(iv) the Commission has not issued an order preventing or
suspending the use of the Prospectus or any preliminary prospectus
filed as a part of the Registration Statement or any amendment
thereto; no stop order suspending the effectiveness of the
Registration Statement has been issued; and, to the best knowledge
of the respective signers, no proceedings for that purpose have
been instituted or are pending or contemplated under the Act.
The delivery of the certificate provided for in this subparagraph
shall be and constitute a representation and warranty of the Company as
to the facts set forth in said certificate.
(k) You shall have received a certificate of each Selling
Stockholder dated the Closing Date or the Option Closing Date, as the
case may be, to the effect that the representations and warranties of
such Selling Stockholder set forth in Sections 6(a) and 6(b) of this
Agreement are true and correct as of such date and the Selling
Stockholder has complied with all the agreements and satisfied all the
conditions on the part of such Selling Stockholder to be performed or
satisfied at or prior to such date.
(l) You and Xxxxxx, Xxxx & Xxxxxxxx LLP, counsel for the
Underwriters, shall have received on or before the Closing Date or the
Option Closing Date, as the case may be, such further documents,
opinions, certificates and schedules or instruments relating to the
business, corporate, legal and financial affairs of the Company as you
and they shall have reasonably requested from the Company.
(m) Each Selling Stockholder will deliver to EVEREN Securities,
Inc., prior to the Effective Date, a properly completed and executed
United States Treasury Department Form W-9 (or other applicable form or
statement specified by Treasury Department regulations in lieu thereof).
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9. Effective Date of Agreement, Termination and Defaults. This Agreement
shall become effective upon, and shall not be deemed delivered until, the later
of (i) execution of this Agreement and (ii) when notification of the
effectiveness of the Registration Statement has been released by the Commission.
This Agreement may be terminated at any time prior to the Closing Date
and any exercise of the option to purchase Additional Shares may be canceled at
any time prior to any Option Closing Date by the Underwriters by written notice
to the Company if any of the following has occurred: (i) since the respective
dates as of which information is given in the Registration Statement and the
Prospectus, any material adverse change or development involving a prospective
material adverse change in the condition, financial or otherwise, of the Company
or the earnings, assets, liabilities, affairs, prospects, management or business
of the Company, whether or not arising in the ordinary course of business, that
would, in the Representatives' sole judgment, make it impracticable to market
the Shares on the terms and in the manner contemplated in the Prospectus, (ii)
any outbreak or escalation of hostilities or other national or international
calamity or crisis or change in economic conditions or in the financial markets
of the United States that, in the Representatives' judgment, is material and
adverse and would, in the Representatives' judgment, make it impracticable to
market the Shares on the terms and in the manner contemplated in the Prospectus,
(iii) the suspension or material limitation of trading in securities on the
NYSE, the American Stock Exchange or the Nasdaq Stock Market or limitation on
prices for securities on either such exchange or the Nasdaq Stock Market, (iv)
the enactment, publication, decree or other promulgation of any federal or state
statute, regulation, Rule or order of any court or other governmental authority
that in the Representatives' opinion materially and adversely affects, or will
materially and adversely affect, the business or operations of the Company, (v)
the declaration of a banking moratorium by either federal or Illinois, New York
or Colorado state authorities, (vi) the taking of any action by any Federal,
state or local government or agency in respect of its monetary or fiscal affairs
that in the Representatives' opinion has a material adverse effect on the
financial markets in the United States, (vii) there shall be any change in
financial markets or in political, economic or financial conditions which, in
the opinion of the Representatives, either renders it impracticable or
inadvisable to proceed with the offering and sale of the Shares on the terms set
forth in the Prospectus or materially adversely affects the market for the
Shares, or (vii) any conditions to the Underwriters' obligations shall not have
been fulfilled when and as required by this Agreement.
If on the Closing Date or on any Option Closing Date, as the case may
be, any of the Underwriters shall fail or refuse to purchase the Firm Shares or
Additional Shares, as the case may be, which it has agreed to purchase
hereunder on such date, and the aggregate number of Firm Shares or Additional
Shares, as the case may be, that such defaulting Underwriter or Underwriters
agreed but failed or refused to purchase does not exceed, in the aggregate, 10%
of the total number of Shares that all Underwriters are obligated to purchase on
such date, each non-defaulting Underwriter shall be obligated, in the proportion
which the number of Firm Shares set forth opposite its name in Schedule II
hereto bears to the total number of Firm Shares or Additional Shares, as the
case may be, that all the non-defaulting Underwriters have agreed to purchase,
or in such other proportion as you may specify, to purchase the Firm Shares or
Additional Shares, as the case may be, that such defaulting Underwriter or
Underwriters agreed but failed or refused to purchase on such date. If, on the
Closing Date or on the Option Closing
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Date, as the case may be, any of the Underwriters shall fail or refuse to
purchase the Firm Shares or Additional Shares, as the case may be, in an amount
that exceeds, in the aggregate, 10% of the total number of the Shares, and
arrangements satisfactory to you and the Company for the purchase of such Shares
are not made within 48 hours after such default, this Agreement shall terminate
without liability on the part of the non-defaulting Underwriters, the Company
and the Selling Stockholders, except as otherwise provided in this Section 9. In
any such case that does not result in termination of this Agreement, either you
or the Company may postpone the Closing Date or the Option Closing Date, as the
case may be, for not longer than seven (7) days, in order that the required
changes, if any, in the Registration Statement and the Prospectus or any other
documents or arrangements may be effected. Any action taken under this
paragraph shall not relieve a defaulting Underwriter from liability in respect
of any default of any such Underwriter under this Agreement.
The indemnity and contribution provisions and other agreements,
representations and warranties of the Company, the Selling Stockholders and the
Company's officers and directors set forth in or made pursuant to this
Agreement shall remain operative and in full force and effect, and will survive
delivery of and payment for the Shares, regardless of (i) any investigation, or
statement as to the results thereof, made by or on behalf of any of the
Underwriters or by or on behalf of the Company or any Selling Stockholder or the
officers or directors of the Company or any controlling person of the Company,
(ii) acceptance of the Shares and payment therefor hereunder or (iii)
termination of this Agreement. Notwithstanding any termination of this
Agreement, the Company shall be liable for and shall pay all expenses it has
agreed to pay pursuant to Section 5(l).
Except as otherwise provided, this Agreement has been and is made
solely for the benefit of, and shall be binding upon, the Company, the Selling
Stockholders, the Underwriters, any indemnified person referred to herein and
their respective successors and assigns, all as and to the extent provided in
this Agreement, and no other person shall acquire or have any right under or by
virtue of this Agreement. The terms "successors and assigns" shall not include
a purchaser of any of the Shares from any of the several Underwriters merely
because of such purchase.
10. Effectiveness of Registration Statement. You, the Company and the
Selling Stockholders will use your, its and their best efforts to cause the
Registration Statement to become effective, if it has not yet become effective,
and to prevent the issuance of any stop order suspending the effectiveness of
the Registration Statement and, if such stop order be issued, to obtain as soon
as possible the lifting thereof.
11. Miscellaneous. All communications hereunder will be in writing and,
if sent to the Underwriters will be mailed, delivered or telegraphed and
confirmed to you c/o EVEREN Securities, Inc., 00 Xxxx Xxxxxx Xxxxx, Xxxxxxx,
Xxxxxxxx 00000-0000, Attention: Syndicate Department, with a copy to Xxxxxx,
Xxxx & Xxxxxxxx LLP, Xxx Xxxxxxxxxx Xxxxxx, Xxx Xxxxxxxxx, Xxxxxxxxxx 00000,
Attention: Xxxxxxx X. Xxxx; if sent to the Company will be mailed, delivered or
telegraphed and confirmed to the Company at its corporate headquarters,
attention Chief Executive Officer with a copy to McGuire, Woods, Battle &
Xxxxxx, L.L.P., Xxx Xxxxx Xxxxxx, Xxxxxxxx, Xxxxxxxx 00000, Attention: Xxxxxx
X. Xxxxxx, Xx.; and if sent to the Selling
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Stockholders will be mailed, delivered or telegraphed care of the Company, with
a copy to, or in any case to such other address as the person to be notified may
have requested in writing.
THIS AGREEMENT SHALL BE GOVERNED AND CONSTRUED IN ACCORDANCE WITH THE LAWS
OF THE STATE OF ILLINOIS WITHOUT REGARD TO THE PRINCIPLES OF CONFLICTS OF LAW
THEREOF.
This Agreement may be signed in various counterparts which together shall
constitute one and the same instrument.
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Please confirm that the foregoing correctly sets forth the agreement among
the Company, the Selling Stockholders and the several Underwriters, including
you.
Very truly yours,
CONCEPTS DIRECT, INC., a Delaware corporation
By:
----------------------------------
Name: Xxxxxxx X. Xxxxxx
Title: Chief Executive Officer
Selling Stockholders:
-----------------------------------------
Xxxxxxx X. Xxxxxx
-----------------------------------------
Xxxxxxx X. Xxxxxxxxxxxxx
-----------------------------------------
H. Xxxxxxxx Xxxxxx, Xx.
-----------------------------------------
Xxxxxxx X. Xxxxx
-----------------------------------------
J. Xxxxxxx Xxxxx
-----------------------------------------
Xxxxxxxx Xxxxxxxxxxxxx
-----------------------------------------
Xxxxxx X. Xxxxxxxxxxxxx
X.X. XXXX & CO.
By:
--------------------------------------
Title:
-----------------------------------
Print Name:
-----------------------------
The foregoing Underwriting Agreement is hereby
confirmed and accepted as of the date first
above written.
EVEREN Securities, Inc.
Acting as Representatives of the several
Underwriters named in Schedule II.
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By: EVEREN Securities, Inc.
By:
--------------------------------
Xxxx Xxxxxx
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SCHEDULE I
NAME AND ADDRESS OF SELLING STOCKHOLDER NUMBER OF FIRM SHARES
Xxxxxxx X. Xxxxxx 197,468
0000 Xxxxx Xxxxxx
Xxxxxxxx, Xxxxxxxx 00000
Xxxxxxx X. Xxxxxxxxxxxxx 32,500
000 0xx Xxxxxx, Xxxxx XX0
Xxxxxxx, Xxx Xxxxxx 00000
H. Xxxxxxxx Xxxxxx, Xx. 6,000
0000 Xxxxx Xxxxxx
Xxxxxxxx, Xxxxxxxx 00000
Xxxxxxx X. Xxxxx 34,000
000 Xxxxxx Xxxxx
Xxxxxxx, Xxxxxxxx 00000
J. Xxxxxxx Xxxxx 12,528
0000 Xxxxx Xxxxxx
Xxxxxxxx, Xxxxxxxx 00000
Xxxxxxxx Xxxxxxxxxxxxx 1,000
c/o Xxxxxxx X. Xxxxxxxxxxxxx
000 0xx Xxxxxx, Xxxxx XX0
Xxxxxxx, Xxx Xxxxxx 00000
Xxxxxx X. Xxxxxxxxxxxxx 1,500
c/o Xxxxxxx X. Xxxxxxxxxxxxx
000 0xx Xxxxxx, Xxxxx XX0
Xxxxxxx, Xxx Xxxxxx 00000
X.X. Xxxx & Co. 843,600
0000 Xxxxxxx Xxxx Xxxxxxxxx
Xxxxxxx, Xxxxxxxx 00000
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SCHEDULE II
UNDERWRITER NUMBER OF FIRM
SHARES TO BE
PURCHASED
EVEREN Securities, Inc......................................
Xxxxx & Xxxxxxxxxxxx, Inc...................................
TOTAL 1,600,000
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